Accused Sergeant Heads Down A Long Legal Road

Army Staff Sgt. Robert Bales, who is accused of killing 16 Afghan civilians, will have the case heard in the military justice system, which has significant differences from the civilian courts. Here, Bales is shown in a training exercise in Fort Irwin, Calif., last August.

Spc. Ryan Hallock
/ AP

Originally published on March 21, 2012 10:50 am

The military justice system has been crafted to work efficiently, but Army Staff Sgt. Robert Bales can expect a lengthy legal process as he faces accusations that he killed 16 men, women and children in Afghanistan

Bales is locked up in Fort Leavenworth, Kansas, as he and his lawyer prepare for a case that involves a horrendous mass murder. In addition, it's a stress point that could trigger retaliation against American troops and even affect the course of a U.S. war that's more than a decade old.

U.S. military leaders, including Defense Secretary Leon Panetta and the commander-in-chief, President Obama, have weighed in on the shootings. And yet military officials still have the task of guaranteeing Bales a just process that's free from undue "command influence."

For starters, the military case differs from the processes followed in civilian murder cases, either in the U.S. or Afghanistan.

A Different View Of The Law

The difference begins with the decision on whether a murder suspect should be accused and tried.

In civilian life, that decision is usually made by a grand jury in a secret hearing that's led by a prosecutor who presents evidence against the accused. The suspect and the suspect's lawyers are barred from the proceedings.

Bales will likely face a much more public and adversarial process, called an Article 32 hearing.

"It's unlike a secret grand jury," says Grover Baxley, a former Air Force lawyer. "The accused can be there. The defense attorney can be there. They can ask questions and produce witnesses of their own."

Baxley is now a partner in JAG Defense, a civilian law firm that specializes in defending military personnel in military cases.

The Article 32 hearing can be an advantage to the defendant and the defense lawyers, because it gives them a chance to fight an accusation before there's a decision about whether to take it to trial.

In the military, that decision is made by a convening officer, usually a general.

If that officer decides there should be a court martial, the advantage shifts from the defense to the prosecution.

Unlike a civilian trial, where the prosecution and the defense pick a jury, the officer who decides there should be a trial is also the one who chooses the jury members.

The choices are usually made with the advice of a lawyer from the Judge Advocate General's Corps.

"That's the big one that people always point to as being unfair," says Baxley. "It's the same as allowing the prosecutor to pick the jury."

Military Law And Military Goals

That raises the prospect of what's called "undue command influence," and whether military courts can be used to work toward military goals — such as building good relations with civilians in Afghanistan where NATO forces are fighting insurgents.

There might be a temptation to throw the book at an alleged perpetrator in order to assuage the anger of local people where the massacre took place.

"All courts have a political eye on the environment they're immersed in," says defense attorney Eric Montalvo. "All the members in this case are going to be aware of what's going on and what's going to be at stake."

Montalvo is an ex-Marine Corps lawyer and a co-founder of the Federal Practice Group in Washington, D.C.

He says officials in the Bales case will probably go out of their way to avoid any appearance of bias, especially because of the scrutiny the case will get.

Officials at the very top of the military have already commented, including Panetta, who said the death penalty "could be a consideration" in the case.

A Question Of Death

"'Death is different,' is what we say," Montalvo says. "That's true, because if we get it wrong, this is the worst outcome we could have in criminal justice."

One difference is that the military jury must give a unanimous verdict in a death-penalty case. Other military verdicts require only a two-thirds majority of the jury members.

Another difference is that a capital case would likely take much longer, Baxley says. He cites the 2009 shootings in Fort Hood, Texas, in which an Army psychiatrist, Maj. Nidal Hasan, is accused of killing 13 people.

Trial in that case was recently delayed until June.

"They're very deliberative in these cases," Baxley says. He's guessing that a trial in the Bales case would take at least two years.

One complicating question in this case is whether Bales might offer an insanity defense.

Military law has a provision for what is called "lack of mental responsibility."

The considerations, says Baxley, are "does the accused have a severe mental disease or defect? At the time of the crime, could he have appreciated the wrongfulness of his action? Is he competent to stand trial, and can he cooperate with his defense team?"

John Henry Browne, a civilian lawyer representing Bales, told reporters on Monday that his client was "confused" and didn't have a clear memory of what had happened on March 11, the night of the killings.

If Afghans Tried The Case

Afghan President Hamid Karzai has said Bales should be tried in Afghanistan, under the Afghan justice system.

That may conjure up images of eye-for-an-eye justice.

But Clark Lombardi, an associate professor of law at the University of Washington, notes there are many interpretations of Islamic, or shariah, law in the Muslim world.

Lombardi, an expert on Islamic law, says countries such as Afghanistan typically say their judicial systems are "consistent with Sharia law," but actually follow a civil law system.

The Afghans "have a criminal code drafted with the assistance of the Italian government," he says. "It would be recognizable by anyone from France or Italy."

Abdullahi Ahmed An-Na'im, a professor of law at Emory University, says it's difficult to tell how more traditional Islamic law might apply in the Bales case.

One feature of that tradition, he says, is that the family of the victim would have the choice of whether there should be a prosecution, and it might choose to negotiate a financial settlement in lieu of prosecution.

"In Afghanistan, the Taliban is going to exploit the situation and even push the families to insist on retaliation, so it's going to take great courage for the families to decide on what they think is right," he says.

Na'im says Islamic law would also accept insanity as a defense "much the same as in modern Western law."

He says the family could insist on the death penalty or accept compensation, "but the best way, according to the Quran, is to forgive."

That's a long way from the kind of process that Robert Bales may be facing, but Montalvo says many of the same concerns apply.

"There's a human being behind all this, and that will be an acute conflict among the members," he says. "How does this case impact our ability to fight the fight, versus protection under the law for the defendant?"